DCIT, New Delhi V. M/s Nidhi Builders ( International) Pvt Ltd., New Delhi

ITA 2800/DEL/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4570 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2011-2012
• Appeal Filed On: 05-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect
• Section: 268A

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E : NEW DELHI BEFORE SHRI KULDIP SINGH , JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 3905, 3904 , /DEL/ 2006 (ASSESSMENT YEAR: 2000 - 01, 2001 - 02 ) ACIT, CIRCLE - 02 , NEW DELHI VS. M/S. NIIT LTD, C - 125, OKHLA INDUSTRIAL AREA, PHASE - I, NEW DELHI PAN: AAACN0085D (APPELLANT) (RESPONDENT) CO NO. 268, 269/DEL/2010 ( ITA NO. 3905, 3904, /DEL/ 2006 (ASSESSMENT YEAR: 2000 - 01, 2001 - 02 ) M/S. NIIT LTD, C - 125, OKHLA INDUSTRIAL AREA, PHASE - I, NEW DELHI PAN: AAACN0085D VS. ACIT, CIRCLE - 02 , NEW DELHI (APPELLANT) (RESPONDENT) REVENUE BY : SHRI GC SRIVASTAVA, ADV. SPECIAL COURT, SHRI SUVINAY K DASH, ADV ASSESSEE BY: SHRI AJAY VOHRA, SR. ADVOCATE MS DEEPIKA AGGARWAL, ADV ITA NO. 2800 /DEL/ 2017 (ASSESSMENT YEAR: 2011 - 12 ) DCIT, CIRCLE - 18(1), NEW DELHI VS. NIDHI BUILDERS (INTERNATIONAL) PVT. LTD, B - 2/1B, SAFDARJUNG ENCLAVE, NEW DELHI PAN: AABCN4091J (APPELLANT) (RESPONDENT) REVENUE BY : MS RINKU SINGH, SR. DR ASSESSEE BY: NONE DATE OF HEARING 26/08/2019 DATE OF PRONOUNCEMENT 2 7 /08/2019 O R D E R PAGE | 2 PER BENCH 1 . THESE ARE THE APPEALS FILED BY DEPARTMENT AND THE CROSS OBJECTIONS AGAINST THE ORDER OF RESPECTIVE THE LD CIT(A) FOR RESPECTIVE ASSESSMENT YEARS. 2 . AT THE OUTSET OF THE HEARING ITSELF, THE LD. ARS BROUGHT TO OUR ATTENTION THAT CBDT VIDE CIRCULAR NO. 17/2019 DATED 08 TH AUGUST 2019 HAS DECIDED THAT THE REVENUE WOULD NOT PREFER ANY APPEAL BEFORE THE TRIBUNAL IF THE TAX EFFECT IS LESS THAN RS. 50 LAKHS. THEREFORE, HE PLEADED THAT THE APPEAL OF THE REVENUE BE DECIDED AS PER THE INSTRUCTION OF THE CBDT. 3 . THE LD DRS VEHEMENTLY OBJECTED TO THE SAME AND SUBMITTED THAT IT APPLIES PROSPECTIVELY AND NOT T O PENDING APPEALS. 4 . WE HAVE HEARD THE CONTENTION OF RIVAL PARTIES AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE CBDT VIDE CIRCULAR NO. 17/2019 DATED 08 TH AUGUST 2019 HAS ENHANCED THE MONETARY LIMIT FOR FILING THE APPEAL BY THE DEPARTMENT BEFORE IN COME TAX APPELLATE TRIBUNAL, HONBLE HIGH COURTS AND HONBLE SUPREME COURT. THE RELEVANT PARA OF THE AFORESAID CIRCULAR IS REPRODUCED AS UNDER : - 2. AS A STEP TOWARDS FURTHER MANAGEMENT OF LITIGATION, IT HAS BEEN DECIDED BY THE BOARD THAT MONETARY LIM ITS FOR FILING OF APPEALS IN INCOME - TAX CASES BE ENHANCED FURTHER THROUGH AMENDMENT IN PARA 3 OF THE CIRCULAR MENTIONED ABOVE AND ACCORDINGLY, THE TABLE FOR MONETARY LIMITS SPECIFIED IN PARA 3 OF THE CIRCULAR SHALL READ AS FOLLOWS: S.NO. APPEALS/SLPS IN INCOME - TAX MATTERS MONETARY LIMIT (RS.) 1 . BEFORE APPELLATE TRIBUNAL 50.00,000 2. BEFORE HIGH COURT 1 . 00 . 00.000 3. BEFORE SUPREME COURT 2.00,00.000 3. FURTHER, WITH A VIEW TO PROVIDE PARITY IN FILING OF APPEALS IN SCENARIOS WHERE SEPARATE ORDER IS PASSED BY HIGHER APPELLATE AUTHORITIES FOR EACH ASSESSMENT YEAR VIS - A - VIS WHERE COMPOSITE ORDER FOR MORE THAN ONE ASSESSMENT YEARS IS PASSED, PARA 5 OF THE CIRCULAR IS SUBSTITUTED BY THE FOLLOWING PARA: '5. THE ASSESSING OFFICER SHALL CALCULATE THE TAX EFF ECT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUES IN THE CASE OF EVERY ASSESSEE. IF, IN THE CASE OF AN ASSESSEE. THE DISPUTED ISSUES ARISE IN MORE THAN ONE ASSESSMENT YEAR, APPEAL CAN BE FILED IN RESPECT OF SUCH ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IN RESPECT OF THE DISPUTED ISSUES EXCEEDS THE MONETARY' LIMIT SPECIFIED IN PARA 3. NO APPEAL SHALL BE FILED IN RESPECT OF AN ASSESSMENT YEAR OR Y EARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3 . FURTHER, EVEN IN THE CASE OF COMPOSITE ORDER OF ANY HIGH COURT OR APPELLATE AUTHORITY WHICH INVOLVES MORE THAN ONE ASSESSMENT YEAR AND COMMON ISSUES IN MORE THAN ONE ASSESSMENT YEAR, NO APPEAL SHALL BE PAGE | 3 FILED IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN W HICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT SPECIFIED IN PARA 3. IN CASE WHERE A COMPOSITE ORDER/ JUDGEMENT INVOLVES MORE THAN ONE ASSESSEE. EACH ASSESSEE SHALL BE DEALT WITH SEPARATELY. 4. THE SAID MODIFICATIONS SHALL COME INTO EFFECT FROM THE DA TE OF ISSUE OF THIS CIRCULAR. 5. THE SAME MAY BE BROUGHT TO THE NOTICE OF ALL CONCERNED. 6. THIS ISSUES UNDER SECTION 268A OF THE INCOME - TAX ACT, 1961. 5 . WE FIND THAT THE TAX EFFECT INVOLVES IN THE APPEAL OF THE REVENUE IS BELOW RS. 50 LAKHS. THERE IS NO DISPUTE THAT THE BOARDS INSTRUCTIONS OR DIRECTIONS ISSUED TO THE INCOME - TAX AUTHORITIES ARE BINDING ON THOSE AUTHORITIES, THEREFORE, THE DEPARTMENT SHOULD HAVE WITHDRAWN/NOT PRESSED THE PRESENT APPEAL IN VIEW OF THE AFORESAID INSTRUCTION SINCE THE TAX EFF ECT IN THE INSTANT APPEAL IS LESS THAN THE AMOUNT OF RS. 50 LAKHS. THE ISSUE OF APPLICABILITY OF THE ABOVE CIRCULAR TO PENDING APPEALS HAS BEEN DECIDED BY THE COORDINATE BENCH IN DINESH MADHAVLAL PATEL [TS - 469 - ITAT - 2019(AHD)] 2019 - TIOL - 1556 - ITAT - AHM DATED 14 TH AUGUST, 2019 . 5. IN VIEW OF THE ABOVE, CIRCULAR NO. 17/2019 DATED 08/08/2019 WILL APPLY TO ALL PENDING APPEALS. THEREFORE THE PRECEDENT, IT IS HELD THAT THE APPEAL IS NOT MAINTAINABLE IN THE INSTANT CASE AS THE TAX EFFECT IS LESS THAN RS. 50 LAKHS. ACCORDINGLY, IT IS HELD THAT APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. WE ALSO HASTENED TO ADD THAT CERTAIN TIMES INSTANCES STATED IN PARA NO. 10 OF THE CBDT CIRCULAR NO. 3/2018 DATED 11.07.2018 IS NOT DISCERNABLE FROM THE ASSESSMENT AND APPELLATE ORDERS, THEREFOR E, IN SUCH CASES, WE ALSO GIVE LIBERTY TO REVENUE THAT IF SUCH INSTANCES COMES TO THEIR NOTICE THAN, REVENUE MAY FILE MISCELLANEOUS APPLICATION WITH SUCH EVIDENCES. 6. IN THE RESULT, APPEAL FILED BY THE DEPARTMENT AND THE CROSS OBJECTIONS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 7 / 08 / 2019 . - SD/ - - SD/ - ( KULDIP SINGH ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 7 / 08 / 2019 A K KEOT COPY FORWARDED TO PAGE | 4 1 . APPLICANT 2 . RESPONDENT 3 . CIT 4 . CIT (A) 5 . DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI